Copyrights and Permissions in Scholarly and Educational Publishing

This document, approved by the Board of Directors in the 1990s, is currently under review and will soon be updated and revised.

Statement Regarding a National Policy on Granting of Reproduction Rights in Art-Historical Publishing

Costs associated with research and publication of nonprofit, art-historical scholarship have risen dramatically in recent years. Certain causes of this situation are more susceptible of remedy than others. Fees to purchase visual materials for study and research purposes may not be a problem; those for permission to publish the same clearly are.

According to the Copyright Act of 1976, codifying the common law doctrine of fair use, reproduction for noncommercial “purposes such as criticism, comments, teaching . . . scholarship, or research, is not an infringement of copyright”; On this basis no scholar should be subject to charges for the right to reproduce visual material for scholarly purposes.

Fees for publication rights are, however, frequently, if irregularly, levied and have been steadily increasing over the past decade. CAA’s 1995 Questionnaire on Picture Rights, distributed to art museum directors (AAMD’s mailing list), museum personnel (a portion of AAM’s mailing list), and CAA membership at large revealed that no standard pattern for reproduction rights and fees exists: some suppliers (museums, libraries, archives, artists, etc.) charge no fee; others charge fees as high as $300 or more, and there are innumerable variations in between. On occasion the fee is waived in response to a specific request from an author; in most instances it is not. In some cases the publisher absorbs the costs of such fees, thereby increasing the ultimate price of the publication in question; in the majority of cases reproduction rights fees are seen as the author’s responsibility.

These fees are having a profound effect on scholarship. They are contributing to overall rising costs of scholarship in the field; but worse, they may be contributing to an actual decline in the quality of scholarship. That is to say, the presence of such charges undoubtedly inhibits the use of visual support for argumentation. In some documented cases the level of costs involved has resulted in cancellation of an important publication project.

The dissemination of knowledge in the form of scholarly research and writing is clearly in the interest of all. Museum curators, archivists, librarians, artists, artists’ heirs, and other custodians or owners of works of art, and of the visual documentation deriving from them, recognize that scholarship enhances the potential humanistic value of works of art; they would thus naturally seek to encourage the development and growth of the field. At the same time, institutions are increasingly faced with formidable financial burdens and constraints. It is thus understandable that they should seek to meet these challenges by recovering direct and indirect costs wherever possible. The imposition of fees for reproduction rights for scholarly publications (over and above the cost of the photographs, or other illustrative material) would need to be justified within such an “indirect” cost analysis, and the scholarly community is sensitive to the arguments that have been advanced to justify such charges in relation to commercial use. But it is to be hoped that a clear distinction would be drawn between large and limited press runs.

For various reasons it is difficult for the suppliers to undertake a study of this problem. Many individual institutions have developed policies on the question, and devoted careful thought to the problems scholars face, but it has not been possible to arrive at a consistent or entirely defensible set of results. The scholarly community, with the participation of suppliers and interested parties (representatives of the museum profession, of libraries, of commercial and noncommercial presses and archives, of licensing agencies, etc.), has developed the following policy on the issue.

General acceptance of these guidelines will surely serve the best interests of all constituencies, and at the same time strengthen the capacity of the scholar to publish research without inordinate financial burden. As the principles of a strong national policy, the guidelines should serve as a basis for a full and candid discussion of the issues on an international level.

Guidelines for Fair Use of Visual Materials in Scholarly Publication and Research

The Proposal
Whenever possible, institutions that supply visual materials should waive reproduction fees for a scholarly publication. If this should, in some instances, not be feasible, fees should be substantially lower than for a commercial production.

Visual materials for scholarly research should be obtainable by scholars from institutional and commercial sources for a reasonable fee.

Definitions Visual Materials: Visual materials that may be the source of an image include primary sources, such as original works of art, photographs, molds, architectural drawings, archival holdings, manuscripts, etc., and secondary sources, such as photographs, transparencies (including slides), microfilm, microfiche, film, videotape and disk, and journals.

Scholarly Publication: Scholarly publications are defined here as those publications that reproduce an image for an educational/cultural purpose and are directed to a limited educational/professional audience with, for books, a limited press run of less than 4,000 copies. A scholarly publication with a limited press run under this definition may be published by either a profit-making or a nonprofit-making or a nonprofit institution.

It is expected that in preparing a scholarly work for publication, a scholar will abide by the rules and procedures of institutions from which visual materials are obtained, and that citations of sources for visual materials published shall conform to those required by the institution or repository.

Parties Concerned: The parties concerned in the consideration of fair use and reproduction rights in the publication of visual materials from collections include the following: (1) institutions or collections: nonprofit institutions including museums, libraries, archives, historical societies, foundations, photographic archives; (2) commercial photographic services, commercial photographic archives, photographers, and other suppliers of visual materials; and (3) copyright agencies: agents for artists and artists’ heirs who grant permission for reproduction of works of art and to whom royalties may be owed.

Ancillary IssuesComplimentary Copies: Assuming that publication reproduction fees have been waived (or at least substantially reduced), a complimentary copy of a publication requested by suppliers of visual materials should be provided by the publisher when a significant proportion (5 percent of the total number) of illustrations in a publication derive from the holdings of the institutions in a publication in which the work is of primary importance.

When less than a “significant number” of illustrations in a publication derive from an institution or collection, the institution shall be able when requested to purchase two copies of the publication from the publisher at a discount at least equal to that accorded the author.

Further Printings and Editions: These guidelines apply only to the first edition. Subsequent printings and editions, foreign language editions, and world distribution, if the total number of copies exceed 4,000 copies, may be subject to additional reproduction/production fees.

Guidelines
To the extent possible, fees for an image supplied for scholarly purposes should approximate the direct cost of the production of the image. Fees for publication should be waived or substantially reduced. At least five different categories of potential fees for visual materials in research and publication need to be considered. They include the following:

A. RESEARCH MATERIALS (photographs from originals and publications)

Black and white

Production of a print from an existing negative

Making a new negative and production of a print

Color

Making a copy transparency

Making a new transparency

Black and white and color

Making of stills from films

B. PUBLICATION

Reproduction from originals and publications

Reproductions from a negative or transparency

Making a new negative or transparency

Reproduction from commercial sources

Length of rental period

Fees for extension of rental period

Fees of duplicating a transparency, negative, or print

Commentary on CAA and SAH Guidelines for the Fair Use of Visual Materials in Scholarly Publication and Research

The Copyright Act and Annotations to the Doctrine of “Fair Use”
Copyright may be defined broadly as the exclusive right by a copyright owner to reproduce, adapt, publish, perform and display a copyrighted work, and thereby to license or exclude others from so doing.1 Virtually all nations have copyright laws. The law in the United States derives from Article I, section 8, of the Constitution, which empowers the Congress to enact copyright legislation. Over the years, a number of federal copyright laws have been passed, most recently the Copyright Revision Act of 1976, which went into effect on January 1, 1978. That statute, which was enacted after two decades of investigation and debate by Congress, replaced the Copyright Act of 1909, which was clearly in need of revision under the impact of modern technology. Among the sections of the law that particularly concern members of CAA and SAH are 107 and 108; in these the lawmakers sought to reconcile conflicting interests of authors and publishers on the one hand and scholars and educators on the other, with special reference to photocopying for research and classroom use.

Section 1072 codifies a doctrine of “fair use,” which derives from the common law and which has long served as a basis for court rulings that sanction in certain cases “copying (of copyrighted material) without permission from, or payment to, the copyright owner where the use is reasonable and not harmful to the rights of the copyright owner” (Report of the Registrar of Copyrights, Library of Congress, January 1985). The doctrine of fair use is said to be “one of the most difficult and contrary concepts in the corpus of Copyright Law”3 and “not susceptible to exact definition.”4 The report of the Senate Committee on the Judiciary, which comprises a part of the legislative history of the 1976 Act, in discussing Section 107 states:

Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible and each case raising the question must be decided on its own facts. On the other hand, the courts have evaluated a set of criteria which, though in no case definitive or determinative, provide some gauge for balancing the equities. These criteria have been stated in various ways, but essentially they can all be reduced to the four standards which . . . have been adopted in section 107.

Section 107 provides:

Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comments, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is fair use the factors to be considered shall include—(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purpose; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

The factors set forth in section 107 to be used in determining whether the doctrine of fair use should be applied in a given case shape a possible defense by scholars in cases where copyright infringement is or may be alleged against them. They justify our contention that in many cases scholars should not have to pay reproduction fees. Unless the Guidelines are accepted in principle, owners of copyright may well refuse to acknowledge the applicability of the fair use doctrine–even where the use (1) is creative rather than mimetic and productive in an educational sense; or (2) the material reproduced is not a consumable workbook or the like and offers information as opposed to an exhibition or performance; or (3) the work is not violated in a qualitative sense;5 or (4) reproduction serves only to enhance the value of the work and reputation of its creator. Frequently a request for permission will trigger a charge for reproduction rights; nevertheless the safest course is to obtain permission. In the case of certain materials (especially unpublished materials) it may be necessary to request permissions from more than one source; the owners of the copyright may not be the owner of the copyrighted object. For example, a former presumption that transfer by sale or donation of a material object was accompanied by assignment of copyright no longer holds true, which is one reason that museums are currently active on both sides of the copyright issue.6

Negotiations with Purveyors of Visual Materials
The first thing to remember when purchasing visual materials is to indicate your intentions: study/teaching purposes or for publication (immediate or eventual). If you intend to publish the visual materials, you should spell out the scholarly nonprofit nature of the publication and ask therefore that fees be waived. Furthermore, you should stress that an article is for a professional journal or Festschrift and that you will receive no renumeration, or that a book is to be printed in a limited press run (generally well below the Guidelines figure). Call attention to these Guidelines, the basic principles of which are already acceptable to museums, artists, and photographers, and for whom credit lines are sufficient recompense. Although publishers normally pay rental fees for color transparencies, ask them to negotiate for longer rental periods.

Different procedures are required to obtain photographs from European sources. When you request photographs from certain European archives (e.g., Scala, Giraudon, Alinari, Archivphoto Marburg), you will be told to contact an American agent unless purchased abroad directly from the archive. On the other hand, if your study is to be published in the country of origin, you may be referred back to the parent archive.

In case of work by modern artists in Europe, the situation is quite different. For those artists who have assigned their rights to copyright licensing agencies, it is necessary to seek permission to reproduce from the licensing agency.

If the photograph itself is copyrighted, permission for its use must be sought from the copyright owner. A photograph first published in the United States more than seventy-five years ago, or a photograph first published without the proper copyright notice prior to 1989 in the United States is in the public domain. This being so, scholars are free to use the photograph in the United States without fear of copyright infringement. The Guidelines refer to instances when a scholar may have been given permission by a museum or collector to take his or her own photograph of a work or have hired a professional to do so. On notice or registration, its copyright under the Act of 1976 belongs to the scholar, not to the owner of the work of art (which may or may not be copyrighted in its own right).

Publishers Contracts
It is in the scholar’s interest to have responsibility for reproduction rights spelled out in contracts, as is the general practice. With wide national acceptance of the Guidelines, not-for-profit presses, such as those that belong to the Association of University Presses, should support the scholar in any bid to have reproduction rights fees waived. At present, some publishers do not stipulate in contracts with scholars that the author must submit proof of authorization to use materials controlled by others while agreeing to pay permission charges; others do so require. In a limited number of cases it is possible to get the publisher to assume these fees, but this usually means less illustrative material than the author would like and, even so, often leads to a higher price for a book (hence more limited distribution of research results). Be aware that there are competitive awards that may aid a publisher to meet certain costs of reproduction in books on the history of art or architecture, among them the Millard Meiss Publication Fund subventions administered by CAA and Graham Foundation grants from Chicago.

Whenever applicable or prudent you should request permission to reproduce copyrighted materials from the owner of these rights and should agree to terms governing this scholarly courtesy, while at the same time making every effort to avoid either assuming the costs or providing copies of your publication to grantees of permission. Refer to the Guidelines in the case of books and negotiate for extra offprints in the case of articles in learned journals.

Recommended Reading

“Rights and Permissions.” Chap. 4 in The Chicago Manual of Style. 14th ed. Chicago: University of Chicago Press, 1993.

Dennis Dabrelle, “Copyright and Its Constituencies: Reconciling the Interests of Scholars, Publishers, and Librarians,” in Scholarly Communication, American Council of Learned Societies, winter 1986, 4–7.

New York University, “Statement of Policy on Photocopying Copyrighted Materials,” May 9, 1983 (guidelines negotiated in connection with 1982 lawsuit with representatives of education, writing, and publishing-photocopying for research or classroom use).

G. T. Sorenson, “Impact of the Copyright Law on College Teaching,” Journal of College and University Law, spring 1986, 509–43.

Notes

1. Copyright resides in the creator or heirs for life of the artist, plus fifty years in the United States. In European countries it is the life of the artist plus seventy years except in Spain, the life of the artist plus eighty years.

5. This is, generally, not a problem when dealing with the reproduction of a work of art as opposed to the written word; for the most part, scholars already assure artists, private collectors, and museums that they will not crop photographs or otherwise compromise the work of art.

6. Artist and architect members should be aware that museums and other public collections may seek to gain such assignment as sine qua non of acquisition.